Court of the Conqueror Writes Another Legal Fiction

On March 31, 2009, the Supreme Court of the United States (S.C.O.T.U.S.) issued its ruling in the case of State of Hawaii v. Office of Hawaiian Affairs, et al. The state of Hawai‘i asked the high court whether or not the state has the authority to sell, exchange, or transfer 1.2 million acres of land formerly held by the Hawaiian monarchy as Crown and Government Lands. Prior to the state’s appeal to the S.C.O.T.U.S., the State Supreme Court unanimously ruled that the state should keep the land trust intact until Kanaka Maoli (indigenous Hawaiian) claims to these lands are settled, and prohibited the state from selling or otherwise disposing of the properties to private parties; it did so based on a 1993 Apology Resolution issued by Congress to the Hawaiian people. The S.C.O.T.U.S. reversed the judgment of the Hawai‘i Supreme Court and remanded the case for further proceedings with the stipulation that the outcome not be inconsistent with the U.S. Supreme Court’s opinion.

The contested land base constitutes 29 percent of the total land area of what is now known as the State of Hawaii and almost all the land claimed by the State as “public lands.” These lands were unilaterally claimed by the U.S. federal government when it unilaterally annexed the Hawaiian Islands through a Joint Resolution by the U.S. Congress in 1898, after they had been “ceded” by the Republic of Hawai‘i, which had established itself a year after the armed and unlawful overthrow of the Hawaiian monarchy under Queen Lili‘uokalani in 1893. These are the same lands mentioned in the 1993 Apology Resolution in which Congress acknowledged and apologized for the United States’ complicity in the overthrow in violation of bilateral treaties with the Hawaiian Kingdom and international law. The Apology also affirmed, “the indigenous Hawaiian people never directly relinquished their claims to their inherent sovereignty as a people or over their national lands to the United States, either through their monarchy or through a plebiscite or referendum.”

The S.C.O.T.U.S. ruled as they did to legitimize the theft of the Hawaiian Islands through the 1893 Overthrow of the Hawaiian Kingdom and the unilateral annexation of 1898 through the Newlands Resolution passed by Congress. The Court claims that Pursuant to the Newlands Resolution, the Republic of Hawaii “ceded absolutely and without reserve to the United States of America all rights of sovereignty of whatsoever kind” and provided that provided that all “property and rights” in the so-called ceded lands are “vested in the United States of America.” This is a legal fiction to cover up the fact that the U.S. government accepted the stolen lands from the Republic of Hawaii government that confiscated these lands after the overthrow of the Hawaiian Kingdom. The Republic of Hawaii could not have ceded these lands in “absolute fee” to the United States because they were stolen. The U.S. government accepted the stolen goods and cannot prove title because they were stolen without Hawaiian people’s consent and without compensation.

The ruling serves to shore up the U.S. government’s rampant criminality and to tie up all loose threads that could implicate the USA in an international case. In other words, this is a preemptive move to foreclose the possibility of restoring the Hawaiian nation under international law. The Court insists that the Apology does not change the legal landscape or restructure the rights and obligations of the State. The ruling states, the Apology would “raise grave constitutional concerns if it purported to ‘cloud’ Hawaii’s title to its sovereign lands more than three decades after the State’s admission to the union.” The Court further opined that “Congress cannot, after statehood, reserve or convey submerged lands that have already been bestowed upon a State.”

If the Apology Resolution has no teeth in the court of the conqueror, then how is it that the Newlands Resolution that unilaterally annexed Hawai`i does? The court could not dismiss the Apology on grounds that it was a joint resolution of Congress (rather than a treaty of annexation, or even an act of Congress) because it would have to declare the Newlands Resolution impotent. Instead, the justices did some grammatical back flips and focused instead on six verbs in the preambular “whereas” clauses that made various observations about Hawaii’s history, which they found have no legal bite: acknowledges, recognizes, commends, apologizes, expresses, and urges. Of course, the Court also cited the disclaimer at the end of the Resolution—no surprise there since the U.S. government’s apology is like a “no fault” apology—carefully crafted in order to preclude restitution of the Hawaiian nation and appropriate reparations after recognizing Hawaii’s full sovereignty.

Unfortunately the trustees of the Office of Hawaiian Affairs—elected by all of Hawaii’s registered voters, not just Kanaka Maoli — were in on it. It’s important to note what is hidden in the name of the case that went before the S.C.O.T.U.S., State of Hawaii v. Office of Hawaiian Affairs, et al., since the “et al” (meaning “and others”) includes four individual Kānaka Maoli. One of them is Dr. Jonathan Kamakawiwo‘ole Osorio—associate professor at the Kamakakūokalani Center for Hawaiian Studies, University of Hawai‘i at Mānoa, and author of Dismembering Lāhui: A History of the Hawaiian Nation to 1887. He is an original plaintiff in the case who sued the state to prevent the sale of these lands and was a defendant in the appeal to the Supreme Court. When I interviewed Osorio for my public affairs radio program, “Indigenous Politics: From Native New England and Beyond,” he specified how his stake in the case is vastly different from the interests of the Office of Hawaiian Affairs, which is a state agency. Had the four individuals not been party to the lawsuit, one could have more easily surmised that this case involved collusion between the executive branch of the state government, and the Office of Hawaiian Affairs, which draws revenues from these lands. Indeed, when I heard part of the oral arguments before the S.C.O.T.U.S., the attorney chosen by the Office of Hawaiian Affairs, like the state attorney general, argued that the state of Hawai‘i has “perfect title” to the Hawaiian lands. Osorio’s argument, however, is clearly very different, “the United States has absolutely no title over these lands…they have no legal foundation.”

What lurks in the background of all of this is the question of a political settlement with Native Hawaiians. Currently, there is a federally driven bill before Congress that would reconstitute a “Native Hawaiian Government” under U.S. policy on Native Americans—The Hawaiian Reorganization Act of 2009, commonly referred to as the “Akaka bill” after its author U.S. Senator Daniel Akaka (D-HI). The U.S. government knows it does not have any legitimate title to these stolen lands. Hence, the only way the United States will ever be able to secure its claim is by constituting a Hawaiian governing entity to give up the claim to them in exchange for some sort of cash settlement. It is telling that Robin Puanani Danner, CEO and president of the Council for Native Hawaiian Advancement & Native Hawaiian Economic Alliance—a major driving force for passage of the Akaka bill—issued a statement right after the ruling and mentioned how the case relates to their proposal for a land claims settlement. Settlement is a sell-out, and the Akaka bill provides the legislative framework for that resolution.

Adopting this law would be yet another assault against the sovereignty of the Hawaiian Nation, which is why over a dozen grassroots Hawaiian organizations oppose it, including Hui Pu, and those that constitute the Hawaiian Independence Action Alliance: the Pro-Kanaka Maoli Independence Working Group, Ka Pakaukau, Komike Tribunal, H.O.N.I.(Hui o Na Ike), Ka Lei Maile Ali‘i Hawaiian Civic Club, Koani Foundation, ‘Ohana Koa, N.F.I.P. – Hawai‘i, Spiritual Nation of Kū – Hui Ea Council of Sovereigns, Living Nation, Settlers for Hawaiian Independence, M.A.N.A. (Movement For Aloha No Ka ‘Aina), as well as the Hawai`i Institute for Human Rights.

The crimes against the Hawaiian nation in 1893 and the ramifications of which continue to this day deserve careful scrutiny by an international court, not the court of the conqueror. Indeed, many Kanaka Maoli and other Kingdom heirs insist that the U.S. government submit its legal position to the Permanent Court of Arbitration for a fair and just resolution.

J. Kēhaulani Kauanui, Ph.D. is an Associate Professor of American Studies and Anthropology at Wesleyan University. She is the author of Hawaiian Blood: Colonialism and the Politics of Indigeneity and Sovereignty(Duke University Press, 2008). She is the producer and host of a public affairs radio program, “Indigenous Politics: From Native New England and Beyond,” which airs on WESU, Middletown, CT and is syndicated on select Pacifica-affiliate stations. An audio archive of all the programs can be accessed online: http://www.indigenouspolitics.com.